IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 2/02
3/02
4/02

MANOA PITA v R 		2/O2

TIANAMO SAVAVE v R 	3/02

ETI OPETA v R 		4/02

Duckworth for appellants
Kitiona for respondent

Hearing: 12 August 2002
Judgment: 14 August 2002

JUDGMENT

These are all appeals against sentences imposed by the Resident Magistrate for offences of driving a motor vehicle whilst impaired by alcohol. In each case a custodial sentence was ordered and the grounds of appeal are similar. I shall therefore deal with the grounds of appeal together and then refer to each case in turn on its own facts.

The grounds are that the sentence is manifestly excessive having regard to the circumstances of the offence committed and the antecedents of the accused.

The offence of driving, attempting to drive or being in charge of a motor vehicle whilst impaired by drink or drugs is created by section 23(1) of the Traffic Act. On conviction the court may order a fine of $200 and imprisonment for one year.

Section 25 provides further that the court may disqualify any person who is convicted of an offence under the Act. That is a discretionary penalty except when the conviction is, inter alia, for an offence under section 23 (1)

In all the present cases the appellant pleaded guilty and had previous convictions of varying seriousness and relevance. They all had employment and were the breadwinners for their respective families.

Counsel for the appellants submits that imprisonment is a penalty of last resort and should rarely be imposed for driving offences. The proper penalty it is submitted would have been a fine. In addition, he points out that the magistrate omitted to make any order of disqualification, as he was required to do. Had it been done, it would have been a substantial punishment in addition to the fine.

Counsel for the respondent properly confined his submissions to pointing out that these are serious offences and are of a type which is too prevalent - opinions shared by the magistrate as shown by his remarks when passing sentence.

I accept the basic submission that imprisonment is not a penalty that should generally be used for driving offences. However, there are a number of driving offences included in the Traffic Act which have the potential to harm members of the public and so the legislature has provided the additional power to order imprisonment for those offences. Of those driving offences, two are singled out for mandatory disqualification; causing death by reckless driving and driving, etc when impaired.

A motor vehicle driven badly can be extremely dangerous. The privilege, of being able to drive carries with it a heavy responsibility and anyone who deliberately ignores that and drives when he has been drinking to the extent that his ability to drive is impaired must understand that he may be imprisoned.

Counsel suggests that it is more important to cure the problem of the drinking than simply to punish. That may be correct but the courts do not have the power or facilities to cure imprudent and casual attitudes to drinking. That is for the individuals who seek to drink and drive.

At the same time it should only be in exceptional cases that an offender is imprisoned immediately for his first offence of drunken driving. Even when immediate imprisonment is the proper penalty, it should be remembered that a short term of imprisonment on a person who has never been in prison before and who is employed will be a very heavy penalty.

I pass now to the individual appeals.

Manoa Pita 2/02

The appellant drove a motorcycle with a passenger and collided with another motorcycle. He admitted he was drunk. He has a number of minor traffic convictions.

He is a seaman, is married with no children but is responsible for the support of his wife and mother.

He was sentenced to 6 months imprisonment.

I consider that, when a sentence of imprisonment is considered for a first offence of drunken driving, it should not, in the absence of aggravating circumstances, be more than 3 months and the court should consider suspending it. In this case he was so drunk that he was involved in an accident which is clearly an aggravating factor and I vary the sentence of imprisonment to 4 months. However, the fact it is a first conviction for this offence makes it appropriate to suspend this sentence for two years. That allows the appellant to decide whether to stop drinking and driving.

If he commits this offence again, he must realise he will have to serve a substantial term in prison.

I order that he also pay a fine of $75. I allow 2 months to pay with 6 weeks imprisonment in default. I also order that he be disqualified from holding a driving licence, for 1 year.

Tianamo Savave 3/02

After drinking for nearly five hours, this appellant drove a motorcycle and crashed after losing control of his vehicle. He had no licence at the time. He has a number of serious criminal convictions but none relating to drink. He has one previous conviction 12 years ago of driving without a licence.

He is a married man with one child and another was due to be born a few weeks after the hearing. He has work as a labourer on the new hospital.

He was sentenced to 6 months imprisonment for driving whilst impaired and 3 months concurrent for driving without a licence.

The same considerations apply as in the case of Pita. I vary the sentence to the extent that the sentence for driving impaired is reduced to 4 months but suspended for 2 years. He will pay a fine of $75 with 2 months to pay and 6 weeks imprisonment in default of payment.

I do not consider a sentence of imprisonment is appropriate for the offence of driving without a licence. I quash it and substitute an order that he pay a fine of $25 with 2 months to pay and 2 weeks imprisonment in default of payment.

I also order that he be disqualified from holding a driving licence for 1 year on the first charge.

Eti Opeta 4/02

The facts of this case are altogether different. The police stopped the appellant at 3.0 in the morning after he had been drinking for three hours. He was kept in custody until 11 am and charged with drunken driving. At 9.30 pm on the same day he was again stopped by the police. He admitted he had been drinking since 7.0pm.

He has a number of very old - convictions which I ignore but he was convicted of driving whilst impaired in February 2000 for an offence committed in 1997. On that occasion he was fined. He is a man of 56 years and works as a seaman. He is responsible for the support of his family.

The magistrate sentenced him to 6 months imprisonment for the first offence and 3 months consecutive for the second.

The comments I have made about a suspended sentence of imprisonment for a first offender clearly do not apply here. He had his chance to stop this type of behaviour when he was fined in 2000. Instead he has not only committed the same offence but, having been arrested for it, he committed the same offence again the same day.

The magistrate was correct to consider a sentence of immediate imprisonment. In the face of such a blatant repetition he was also correct to impose a consecutive sentence for the second offence. I feel he erred in imposing the major penalty for the first offence and I have no doubt he intended to do otherwise. I do not consider a sentence of three months for the first and six months more for the second was wrong in principle.

However, whenever imposing sentences for more than one offence, the court must, after determining the proper sentence for each offence, sit back as it were and consider the totality of the sentences imposed. In this case the appellant had never been to prison before. In such a case and with an older man, imprisonment is particularly hard. In those circumstances I consider a total sentence of 6 months is proper. I therefore quash the orders and substitute a sentence of three months for the first offence and six months for the second but order that they be served concurrently giving a total sentence of 6 months.

I also order that he be disqualified from holding a driving licence for 1 year on the first offence and 5 years on the second which means a total period of disqualification of 5 years.

Date 14th day of August 2002

Gordon Ward
Chief Justice to Tuvalu